The ex-fiancé of Sofía Vergara, star of US TV show Modern Family, is suing her for custody of their frozen embryos.

Nick Loeb filed the suit using pseudonyms, but has now written an editorial on the matter in the New York Times under the headline: 'Our frozen embryos have a right to life'.

The couple underwent IVF in 2013 with the intention of using a surrogate. After one embryo failed to implant and a further surrogate pregnancy resulted in miscarriage, two remaining embryos were frozen. The two split in May 2014 and Loeb asked to keep the embryos, offering to pay for all surrogacy expenses, raise the children himself and have Vergara declared an egg donor.

Vergara, who is now engaged to Joe Manganiello, declined and has stated through her lawyer that she is 'content to leave the embryos frozen indefinitely'. Loeb argues that this is 'tantamount to killing them'.

'Many have asked me: Why not just move on and have a family of your own? I have every intention of doing so. But that doesn't mean I should let the two lives I have already created be destroyed or sit in a freezer until the end of time,' he wrote.

Speaking to the Guardian, Susan Crockin, a US lawyer specialising in reproductive technology law, expressed surprise at how Loeb, who is Catholic, appeared to be driven by the right-to-life argument.

'He has other, far easier and much less legally strained and entangled ways to be a father, so this seems to be much more of a philosophically or religiously driven position than a parenting one,' said Crockin.

She noted that these cases raise the question of whether a decision made by a couple can be bound to the individual.

'There are some courts that would say you made that decision when you made the embryos: "You very thoughtfully, deliberately decided to create embryos, and it was a lot more thoughtful than getting someone pregnant in the backseat of the car and that decision is one we're going to hold you to,''' she said.

Both Loeb and Vergara signed an agreement that any embryos could be brought to term only with both parties' consent. He is now asking to have this voided.

In the US, most embryonic custody cases have sided against the claimant. However, there have been two cases of women with cancer being granted custody of their embryos.

In the UK, stricter guidelines mean that the situation would be more clear cut. According to the Human Fertilisation and Embryology Authority, if one party wishes to withdraw consent they have to write to the fertility clinic. If the other party agrees, the embryos are destroyed. If not, the two parties have 12 months to resolve the legal issue before the embryos are destroyed.

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